Lead Opinion
This case involves an appeal from a district court order granting the City of Bet-tendorf -summary judgment in a negligent supervision case. Here, an eight-year-old girl was injured by a flying baseball bat at a minor league game while on a field trip sponsored by the Bettendorf Parks and Recreation Department. The district court found that a permission slip signed by the parent of the injured girl amounted to an enforceable anticipatory release of future claims against the City. The district court in the alternative ruled that the plaintiffs failed to introduce sufficient evidence to show that the City violated a duty of care owed to the plaintiffs. For the reasons expressed below, we affirm in part, reverse in part, and remand the case to the district court.
I. Background Facts and Prior Proceedings.
Eight-year-old Tara Sweeney enjoyed baseball games. She participated in field trips to Davenport, Iowa, sponsored by the Bettendorf Parks and Recreation Department to see minor league baseball games. In the past, according to Tara, the children sat in “comfy seats” behind home plate that were protected by screening.
In 2003, Tara wanted to go to another ball game. Prior to the field trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was entitled a “Permission Slip,” which the Department required of all participants. The text of the “Permission Slip” was as follows:
I hereby give permission for my child Tara M. Sweeney to attend the Betten-dorf Park Board field trip to John O’Donnell Stadium with the Playgrounds Program on Monday, June 30, 2003. I realize that the Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion. Failure to sign this release as is without amendment or alteration is grounds for denial of participation.
Prior to signing the “Permission Slip,” Cynthia talked with a supervisor about the trip. She was told the times of the field trip and who would be supervising Tara’s group. She then executed and returned the permission slip to the Department.
At the game, the children did not sit in the “comfy seats” behind screening as they had in the past. Instead, Tara was required by the Department to sit on bleachers or the adjacent grassy area along the third base line that was unprotected by screening or netting. Tara chose a seat in the third or fourth row of bleachers. The Department supervisors did not allow the children to move to another location in the stadium.
At a midpoint in the game, a player lost his grip on a bat. The record indicated that the bat -flew a distance of about 120 feet along the third base line at a height of approximately six feet. The bat was airborne for two or three seconds before it struck Tara on the right side of her head. Prior to being struck by the bat, Tara had turned to talk to a friend.
At the time of the incident, no supervisors from the Department were in Tara’s immediate vicinity. One. supervisor who viewed the incident from a distance testified that an adult in the area could possibly have done something, either trying to knock down the bat or yelling for the kids to duck. Cynthia, at her deposition, however, testified that the incident could not have been avoided had an adult been in Tara’s place.
Plaintiffs sued the City and a number of other defendants, including the baseball player involved and the teams playing the
The City filed a motion for summary judgment asserting that the permission slip constituted a waiver of the plaintiffs’ claims and that, in any event, the plaintiffs could not show a breach of any duty of care owed by the City. With respect to the permission slip, the City noted that the language specifically states that a parent realizes that the “Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion” and that “[fjailure to sign this release” is “grounds for denial of participation.” On the issue of breach of duty, the City argued that there was nothing that the City should have done to avoid the accident.
Plaintiffs resisted and filed a cross motion for summary judgment. On the issue of waiver, the plaintiffs contended that the permission slip did not amount to a valid anticipatory release of future claims based upon the City’s negligent acts or omissions. The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.
In resisting the City’s motion for summary judgment based upon the lack of a breach of duty, the plaintiffs, in addition to testimony of lay witnesses, offered a report from Susan Hudson, a professor at the University of Northern Iowa and an expert on playground and park safety. Based on her review, Hudson found that the Department breached its duty of care toward the plaintiffs in several ways. Hudson opined that the Department breached its duty of care by: (1) not informing the Sweeneys about the nature of possible harm even though Cynthia personally inquired about the nature of the activity; (2) not anticipating the known and foreseeable harm that could occur by not paying attention to the selection of seating; (3) not providing direct instructions to the children about paying attention to the possibility of bats and balls flying into the bleacher area; and (4) not providing direct supervision for children under their care.
The district court granted the City’s motion for summary judgment. The district court found that the permission slip constituted a valid waiver of plaintiffs’ claims. In the alternative, the district court found that the plaintiffs did not present sufficient evidence to establish a breach of duty owed to them. Plaintiffs appealed.
II. Direct vs. Interlocutory Appeal.
At the outset, there is a question of whether this case presents a direct appeal or is interlocutory in nature. A direct appeal is heard as a matter of right, while this court has broad discretion to consider whether to hear an interlocutory appeal. Iowa R.App. P. 6.1(c). The central issue is whether an appeal of a district court order which dismisses all claims against one party in a negligence action involving multiple defendants is direct or interlocutory.
In Buechel v. Five Star Quality Care, Inc.,
III. Standard of Review.
We review a district court’s order on a motion for summary judgment for correction of errors at law. Ratcliff v. Graether,
IV. Discussion.
A. Permission Slip as Anticipatory Release of Claims of Negligence. This case involves an exculpatory provision contained in a permission slip signed by the parent of a minor child in connection with recreational activities sponsored by a municipality.
. The early Iowa cases dealing with exculpatory provisions involve real estate contracts. As early as 1921, we considered the effect of a provision in a real estate lease that provided that in no case should the lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. Iowa Co.,
More than thirty-five years later, we considered the effect of provisions in a real estate lease which the tenant claimed relieved the tenant from liability for a fire that was allegedly caused by its own negligence. Sears, Roebuck & Co. v. Poling,
Following Sears, we decided Baker v. Stewarts’ Inc.,
In Baker, we held that this document did not amount to an anticipatory release of future claims based upon negligent acts or omissions of the professional staff of a cosmetology school because a release of such claims would not be apparent to a casual reader. Id. at 709. We cited Sears and dicta in the indemnity case of Evans v. Howard R. Green Co.,
In contrast, in Huber v. Hovey,
The permission slip in this case is much closer to the document in Baker than in Huber. As in Baker, the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent
While we have not previously considered the effect of exculpatory provisions in the specific context of sponsored recreational activities, we see no basis for departing from the Baker-Huber principles in this context. The cases from other jurisdictions demonstrate the reluctance of courts to provide defendants who sponsor recreational activities a more lenient framework for analyzing exculpatory clauses seeking to limit liability for the sponsors’ own negligence. Several .state courts in a recreational context have adhered to a bright-line test, requiring that the specific words negligence or fault be expressly used if an exculpatory provision is to relieve a defendant from liability for its own negligent acts or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc.,
Other courts in the context of recreational activities have not required magic words, but have imposed a demanding requirement that the intention to exclude liability for acts and omissions of a party must be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc.,
In looking at cases involving recreational activities, language similar to that used by the City in this case has been found insufficient to support a release of a party’s own negligence. For example, in Doyle v. Bowdoin College,
For the reasons expressed above, we hold that the language in the permission slip in this case does not constitute an enforceable anticipatory release of claims against the City for its negligent acts or omissions in connection with the field trip.
B. Application of Inherent Risk Doctrine to Defeat Negligent Supervision Claim. The City, while acknowledging that it owed Tara a duty of care, seeks to limit that duty through the application of the inherent risk doctrine. The City claims that the risk of being injured by flying bats and balls when seated outside screening is unavoidable as it is an inherent part of attending a baseball game. As a result, the City claims, it had no duty to protect Tara from the subsequent injuries. The question of the proper scope of legal duty is a question of law to be determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C.,
In support of its position, the City cites Anderson v. Webster City Community School District,
The City also cites Dudley v. William Penn College,
Plaintiffs view the case differently. They distinguish Anderson on the ground that the City had a much greater control over the activities of the children in this case. They note that the City determined that Tara would sit on bleachers unprotected by screening and that the City chose not to follow accepted recreational and leisure standards for the proper safety and supervision of children by failing to ensure direct supervision and by failing to warn them and their parents of the danger of flying bats when sitting in unprotected areas. Tim plaintiffs further note that in Anderson, whether the defendants unreasonably failed to protect the plaintiff was a question for the jury to decide.
The plaintiffs assert Dudley is inappo-site. They see Dudley as a variant of the limited liability rule which relieves baseball park owner-operators of responsibility for flying objects. Here, however, the question on appeal relates not to the duty of the owner-operator of a baseball facility, but to the duty of the City -to properly supervise Tara while attending the game. The City, plaintiffs argue, directed Tara to sit in an unprotected area and then did not provide adequate direct supervision in that area. Further, plaintiffs argue that their expert provided a sufficient basis for a jury to determine that the City acted unreasonably under all' the facts and circumstances.
In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game,
Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected. Quinn v. Recreation Park Ass’n,
This case, however, does not involve a premises liability claim against the owner or operator of a baseball stadium. Instead, the issue is whether the district court erred in granting summary judgment in a negligent supervision case against the City based on its view that the injury was due to “an inherent risk in attending the baseball game.”
We conclude that the district court erred in granting summary judgment based on inherent risk. A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment. See, e.g., Stanley v. Bd. of Educ.,
Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist.,
As a result, the City is not entitled to summary judgment with respect to the specifications of negligence in the plaintiffs’ expert report on the ground of “inherent risk” or the “limited duty doctrine.” The extent to which an injured party knowingly engages in risky behavior in a negligent supervision case is a factor for the fact finder to consider in the framework of comparative fault.
C. Cause in Fact Challenge to Claim of Lack of Direct Supervision.
The City also advances an alternate argument in partial defense to some aspects of the plaintiffs’ negligent' supervision claim. To the extent that the plaintiffs’ case rested on the failure to have adult supervision in close proximity to Tara when the children were seated along the third base line, the City argued that such direct supervision would not have made a difference. The City’s argument amounts to a claim that even if the City breached its duty toward Tara by not providing adequate adult supervision, that breach of duty was not the cause of Tara’s injuries.
We have held that causation has two components: cause in fact and legal cause. Faber v. Herman,
Conceding for purposes of summary judgment that the City had a legal duty to reasonably supervise its charges, and further assuming that the City breached its duty of reasonable care by failing to provide direct supervision to the children in a ratio of one adult for ten children as suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy the “but-for” element of proximate cause for Tara’s inju-
In order to establish cause in fact, the plaintiff need not show certainty or inevitability, but the plaintiff must offer something beyond mere conjecture and speculation. Easton v. Howard,
Here, the evidence simply is not sufficient to allow a reasonable fact finder to conclude that in all likelihood the injuries to Tara would have been avoided if the City would have provided' the direct adult supervision as urged by plaintiffs’ expert. Even if the City provided direct supervision in the ratio of one adult for every ten children, there no is reason to believe that an adult supervisor would likely have been able to knock down the bat or warn Tara effectively to avoid injury.
In order to block the flying bat, the supervisor would have had to have seen the bat leave the hands of the batter and would have had to have sufficient presence and verve to thrust himself or herself into harm’s way to knock down the projectile. This scenario is improbable enough, but there is also no reason to believe that a supervisor would have been sitting in sufficiently' close proximity to be ■ physically able to knock down the bat. In short, the City could have met the plaintiffs’ expert’s standard for direct supervision without affecting the outcome of this tragic affair.
Perhaps realizing the difficulties of persuading a fact finder that a fortuitous courageous block would have occurred but for the breach of duty, the plaintiffs fall back on a warning theory. While an adult seated in the vicinity of Tara would have been in a position to provide a louder and more direct warning to her than a supervisor at a greater, distance, a reasonable fact finder could not conclude that the accident would have likely been avoided if there was direct supervision as suggested by plaintiffs’ expert. The errant bat in this case did not fly like a helicopter seed dropping from some tree, but rapidly ripped through the air at a low elevation to its unhappy destination. Under these facts, it is anyone’s guess as to whether a sharp verbal warning, even if immediately given, would have done the job. We therefore hold that plaintiffs have failed to generate a fact question on the proposition that enhanced direct supervision would have provided sufficient warning to Tara to avoid the injuries.
Our ruling on the issue of cause in fact is consistent with the case law in a number of other jurisdictions that have considered the issue in the context of flying balls and bats.
V. Conclusion.
The permission slip in this case did not release the City from alleged acts of future negligence. Further, the doctrine of inherent risk does not provide a basis to defeat the plaintiffs’ theories of negligence in this case. To the extent the plaintiffs argue that the City breached its duty of care by failing to provide direct supervision to the children once they were seated along the third base line at the ball park, we conclude that the plaintiffs failed as a matter of law to adduce sufficient evidence to raise a triable issue. To this extent, the City is entitled to summary judgment in this case. As a result, the district court’s grant of summary judgment is affirmed in part and reversed in part.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
. While many cases appear to use the terms interchangeably, an exculpatory provision is similar but not identical to an indemnity provision. An indemnity provision ordinarily allocates risks of third party losses among parties to a contract. In an indemnity context, at least one party remains liable for the third party losses. The victim thus still has a source of recovery. An exculpatory provision, however, does not allocate risk between responsible parties but eliminates liability all together. Cathleen M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 135, 170-71 (1984).
. Even in these jurisdictions, the better practice is to expressly use the term 'negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp.,
. As a result of our disposition of the release issue, we do not consider four other arguments advanced by the plaintiffs. First, we do not consider whether the failure to specifically name the City in the release prevents its enforcement by the City. Second, we also do not address the question of whether a parent may release the claims of a minor for the negligent acts or omissions of a sponsor of recreational events. The case law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate Park,
. There has been some resistance to inherent risk or the limited duty doctrine. For example, Professor James noted long ago that the primary assumption of risk doctrine, of which the limited duty rule is a variant, provides "an exceptional curtailment of defendant’s duty below the generally prevailing one to take care to conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., Assumption of Risk, 61 Yale L.J. 141, 168 (1952). More recently, a few judges have directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof'l Baseball Club, Inc.,
. See, e.g., Benedetto v. Travelers Ins. Co.,
Dissenting Opinion
(dissenting).
I respectfully dissent. My departure from the decision of the majority is based on two principal reasons, both tied by a common thread. This common thread is woven with the clear understanding that a baseball game — America's pastime — presents a known, but acceptable, threat of harm to spectators. This threat, of course, comes from baseballs and, on very rare occasions, bats or broken pieces of bats that enter the spectator area from the playing area. While these objects become coveted possessions for spectators of all ages, they are at the same time an inherent danger of attending the game. This danger is the basis for the lawsuit in this case, which I believe should be thrown out by a call made with relative ease.
I. Release of Liability.
First, I believe the release of liability signed by the parents of the child hit by the baseball bat in this case was valid and prevents the parents from suing. The majority, of course, concludes the release was insufficient to cover the particular claim of negligent supervision brought against the city parks and recreation department, who organized the field trip to the ballgame. I agree the release would not cover the full range of injuries a child could reasonably be expected to encounter during a supervised field trip to a professional baseball park, but I believe it at least covered the very obvious and common danger associated with watching a baseball game — the very purpose of the field trip — that any reasonable parent would have understood and contemplated when deciding to permit their child to attend a baseball game.
The majority seems to construct a rule that invalidates all but the most sophisticated and carefully drawn releases by focusing on the general principle of law that agreements to release a party from liability for his or her own negligence are disfavored. Yet, this broad principle is not a working rule of law and has given way to the more pragmatic, specific rule that a release must clearly identify to a casual reader those claims or injuries covered under the release. Baker v. Stewarts’ Inc.,
For example, in Baker a release of “liability for any damage or injury” between a cosmetology school and a patron of services performed by students at the school did not cover an injury to the hair and scalp of the patron that was the subject of a negligence claim for liability against the professional staff who supervised the student services.' Id. The language of the release failed to “clearly and unequivocally” express to a casual reader of the release that it included professional staff in the release of liability. Id. We did not totally invalidate the release as too vague due to the absence of any specific mention of negligence, but only found the language of the release was not broad enough to include professional staff. Id. A patron of the cosmetology school would not understand that he or she was releasing the professional staff from liability by casually reading the release. Id. Similarly, in Huber v. Hovey,
Overall, the Baker-Hovey approach considers the context and subject of a release between the parties and the language expressed in the release and looks to consider whether a casual signer would understand the injury or incident at issue was unambiguously covered. In this case, the language of the release may not cover a broad range of injuries that could be sustained by children who go on a field trip to a baseball park. For example, the release did not express the notion that injuries during the transportation of the children would be covered. The subject of the release was a baseball game, and a parent signing the release would likely not have transportation in mind without some specific identification or reference to the transportation component of the field trip. However, the release did have meaning, and that meaning was the city would at least not be liable for those inherent injuries known to occur to spectators of a baseball game — the subject of the release. The release clearly identified the baseball stadium as the subject of the trip and stated the city would not be “liable for any accidents.” At a minimum, any parent
II. No Duty of Care.
There is á second, more fundamental, reason the case should be dismissed. This reason is the city had no duty to protect the children at the baseball park from the inherent risks of the game of baseball as the children sat in their seats watching the game being played.
I completely agree the city had a duty to supervise the children throughout the field trip and to generally protect the children from reasonably foreseeable harm. However, the creation of a duty of care and the scope of the duty created are always questions of law. Courts have drawn a line on the scope of a duty of care to protect spectators of a baseball game at a baseball park. That line is roughly drawn in an area behind home plate. This area is where spectators need the most protection from foul balls, or perhaps an occasional wild throw. Protection is most needed in this area because the risk of harm to spectators is most foreseeable in this area of a baseball park. Thus, courts have consistently imposed a duty of care on baseball parks to protect spectators from balls entering the spectator area, and baseball parks have responded to this duty by installing protective netting in the area behind home plate.
Of course, protective netting could easily be installed around the entire perimeter of the playing field, which would provide a consistent level of full protection for all spectators in all areas of the baseball park. Yet, courts have almost universally rejected such a notion as a legal duty, driven largely by public policy, which is normally a major component in deciding to create any duty of care. Thus, baseball parks have only a limited duty to spectators, and this duty is to protect spectators behind the area of home plate from foul balls. There is no duty to protect spectators in other areas of the baseball park, even though a foreseeable risk of harm continues to exist for spectators. Yet, this gap in protection comes into play due to public policy. Spectators want some limited protection from the inherent risks of attending a baseball game, but they also attend the game for the chance to catch a foul ball or a home pun ball. This is a time-honored tradition, deeply imbedded into the game itself and the American culture. It is as much a part of the game as, the game itself and has become an inherent but acceptable danger for spectators.
The majority throws a knuckleball in an effort to dance around this culture and the supporting legal principles by relying on the general duty of supervision as a separate, more demanding area of tort law. It holds that supervisors of children have a greater duty of-care to protect child spectators from the inherent risks of watching a baseball game than the owner of the ballpark by requiring adult supervisors to place children in seats that are reasonably protected from the inherent risks. Put another way, the majority essentially declares an adult supervisor can commit negligence by allowing a child to sit in an area of the ballpark outside the protective netting.
At the outset, it must be acknowledged that, from a legal standpoint, this case is not merely about a flying bat. If it was, there could be no liability imposed on the city park and recreation department because a flying bat is too unforeseeable to give rise to a legal duty of care to protect a spectator. That is, it is not reasonably foreseeable to spectators that a flying bat will leave the playing field of a baseball park and enter the spectator area, especially an area thirty feet beyond third base. While the field trip organizers were charged with the responsibility to protect the children during the trip, a flying bat could not have been reasonably anticipated by the trip organizers as a potential harm to the children as they sat in the area of the ballpark beyond third base. Even on those rare occasions when a bat slips from the hands of a batter while attempting to hit a pitched ball, the bat will most likely travel in the direction of the playing field, not 120 feet into the spectator area. It is an extremely rare event for spectators outside the playing area to be placed in the zone of danger of a flying bat, especially a spectator located 120 feet down the third base spectator area. Consequently, no duty of care could be imposed to protect another against such specific, remote harm.
Nevertheless, the law does not impose a duty of care based on the foreseeability of a specific means of injury. See Nachazel v. Miraco Mfg.,
When courts step up to decide whether or not to establish a duty of care under a particular circumstance, three factors are primarily considered: (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns. See Stotts v. Eveleth,
I agree a supervisor should have a continuing duty of care for the safety of children while at the ballpark to protect children from those foreseeable risks of harm that might be encountered from strangers, horseplay on the steps, or other such events, but not from the very risks unique to the game of baseball and those risks that our law has already decided do not need to be eliminated by the baseball parks. An analysis of the factors used to create a duty of care clearly supports this approach.
First, there is nothing particular about a relationship between a child spectator and an adult supervisor who accompanies the child to a baseball game that favors the imposition of liability. The relationship between parties is a factor in creating a duty of care because it often introduces special considerations that help support a duty, such as control by one party over the other party or special benefits derived by a party. As applied to a baseball game, this factor actually tends to support liability on the premise owner more than it does for liability of a supervisor. The premise owner has a contractual relationship with the spectator, primarily controls the designation of the area to sit, and receives a financial benefit. Moreover, the premise owner has the greatest practical ability to protect the spectator. For sure, the relationship between a supervisor of a field trip to a baseball game and a participant on the field trip is also marked by control over the participant, but not the same type of control that relates to a reasonable and effective ability to provide protection from the inherent risks of watching the game. That is to say, the relationship does not easily transform into the ability of a supervisor to protect the child spectator from the inherent risks of the game.
The majority finds supervisors determine where children sit, but the baseball park ultimately controls the seating arrangement. Moreover, the seats around home base protected by netting are usually the most expensive seats and are normally reserved for season ticketholders. It is impractical to conclude the relationship between supervisors and children gave supervisors the ability to seat children behind the protective netting.
Second, the foreseeability of harm to child spectators in an unprotected area of the baseball park is the same, if not greater, for the owner of the premise as it is for supervisors of the spectators. The owner has considerably more knowledge of the baseball park and the dangerous areas of the park. A supervisor should be able to safely expect the most dangerous areas for flying objects have been covered by netting, allowing spectators to sit in unprotected areas that are less dangerous.
Third, and most important, the public policies that support limiting the duty of care to protect spectators from the inherent risks of watching baseball are the same under premise-liability law as under supervisor-liability law. These public-policy concerns have drawn the line, which leaves spectators unprotected except in an area behind home plate. In the other areas of the baseball park, the opportunity
Without examining these factors, the majority has changed the game for spectators who bring children to a baseball park to take in the joys of our national pastime. It does this by concluding children must not be exposed to the same inherent risks of attending a baseball game as unsupervised spectators, and by placing the responsibility for protecting children from the inherent risks of attending a baseball game on adults who accompany children to the game. This conclusion, at its core, can only be explained by policies of overprotec-tionism and the innate desire to remove children from all potential harm they might encounter in life. Yet, this goal can go too far and can end up depriving children of some of the most rewarding and beneficial experiences of their youth. This will be the likely result of the overprotective decision by the majority in this case.
With this decision, America’s pastimfe risks becoming a different, or less frequent, event for children than enjoyed in the past. With the imposition of liability on supervisors and others who accompany children to a professional baseball game, the common field trip, as well as the simple pleasure of a parent accompanying a child and the child’s friend to a baseball park, gives rise to new considerations that can only diminish enthusiasm for the trip. Court decisions can have vast eonse-quences on our way of life, and a trip to the ballpark with children in tow may now need to be preceded by a trip to a lawyer’s office to obtain a release containing all the essential legal language demanded by the majority or be confined to the most expensive seats behind home base, safely protected from the excitement and anticipation of catching a foul ball.
Just as there was no joy in Mudville the day the mighty Casey struck out, there is no joy on this day around Iowa’s ballparks.
. It might be argued that the majority does not actually hold children must be seated behind the netting, but instead could be seated in those areas unprotected by netting that are not unreasonably exposed to the inherent risks of the sudden presence of flying objects.
In other words, the majority believes the area of Tara’s seat in this case — thirty feet beyond third base, three or four rows into the spectator area — was an “unnecessarily hazardous location.” There was, of course, no evidence to support such a proposition, and such a
This hazard is the same whether a spectator is seated thirty feet beyond third base, 130 feet beyond third base, or even 230 feet beyond third base. It is simply of no avail to attempt to distinguish between areas of reasonable hazards outside the area protected by netting and areas of unreasonable hazards outside the area protected by netting. Spectators at a professional baseball game are exposed to inherent dangers most anywhere outside the area protected by netting, and it is a danger society has chosen, until this case, to accept.
. Alexander Cartwright is recognized as the inventor of modem baseball. He published the rules of baseball in 1845, and his team, the Knickerbocker Club of New York, played the first recorded baseball game in 1846.
. The legendary baseball poem, "Casey at the Bat,” was written by Ernest Lawrence Thayer, and first published in the San Francisco Examiner on June 3, 1888.
Concurrence Opinion
(concurring in part and dissenting in part).
I concur in the majority’s opinion in regard to the release of liability signed by the parent of the child but join Justice Cady’s dissent as to the duty of care.